It is well settled law that a minor cannot consent to health care services and treatment unless an exception applies. So what is the impact of the latest legislative changes in the form of the “Parents’ Bill of Rights”? This new law, Florida Statutes Chapter 1014, should not substantially change the way health care providers interact with minors. It may however provide a more unified approach to parents’ rights to both making health care decisions and obtain access to the medical records of their minor children.
Below is a summary of the new Parents’ Bill of Rights law and the potential considerations and challenges for health care providers.
SUMMARY OF THE NEW LAW
The Parents’ Bill of Rights essentially prohibits infringement upon the fundamental rights of parents to direct the upbringing, education, health care, and mental health of a minor child. The legislature believes that important information relating to a minor child should not be withheld, either inadvertently or purposefully, from his/her parent. Under this new law, parental rights include, but are not limited to:
- The right to direct the education and care of a minor child;
- The right to direct the upbringing and moral or religious training of a minor child.
- The right to access and review school records related to the child;
- The right to make health care decisions, unless otherwise prohibited by law;
- The right to access and review medical records related to the child;
- The right to consent in writing before a biometric scan of the child is made, shared, or stored;
- The right to consent in writing before any blood or DNA record is created, shared, or stored, except as required by law or pursuant to a court order;
- The right to consent in writing before the state or any of its political subdivisions makes any type of video or voice recording of the child, unless as part of a court proceeding or a criminal investigation (subject to limited exceptions, including safety or building security or photo ID); and
- The right to be notified if an employee of the state or any of its subdivisions, governmental entities or other institution suspects a criminal offense has been committed against the minor child, unless the incident is reported to law enforcement or DCF and notification to the parent would impede the investigation.
If a parent’s rights are infringed upon by the acts of others (including schools and health care providers), the school or health care provider must demonstrate that the infringing action is reasonable and necessary to achieve a compelling state interest and that there are no less restrictive means to achieve that compelling interest. For purposes of this law, the term “parent” means a person who has legal custody as a natural or adoptive parent or legal guardian.
In the context of health care, this new law requires obtaining informed consent from a parent for health care decisions and treatment as well as providing parents the right to access the medical records of their minor children. Under this law, a health care provider must obtain a parent’s permission before providing services, prescribing medicine, or performing a medical procedure, UNLESS “otherwise provided by law.” This should sound very familiar to health care providers as “informed consent” should be the current foundation of the delivery of health care services in all settings. However, a careful examination of the applicable exceptions is necessary to determine if these new parental rights have really changed anything.
If a health care provider violates the law, the health care provider is subject to disciplinary action and commits a first-degree misdemeanor (punishable by up to 1 year imprisonment).
PARENTAL CONSENT EXCEPTIONS RELEVANT TO HEALTH CARE SERVICES
There are myriad exceptions to obtaining a parent’s informed consent prior to rendering care or treatment in the context of health care. A review of these exceptions reveals that they have not changed. Notwithstanding, each exception should be examined considering the new law to determine if operational modifications are warranted to mitigate the additional risk of criminal prosecution.
The various exceptions to parental consent that exist in the law are enumerated below:
- A minor may be emancipated through marriage and therefore be able to provide his/her own consent (F.S. 743.01). This is a long-standing law that recognizes that once a minor is married, the vast majority of parental rights end. The right to provide consent to health care treatment and make health care decisions for the minor end upon the marriage of the minor. If you are a health care provider treating a minor who claims to be emancipated through marriage, be sure to obtain and maintain a copy of the certificate of marriage and attempt to verify the identity of the minor.
- A minor may be emancipated by court order and able to consent to health care services (F.S. 743.015). Again, this exception predates the new law and has not changed. If you are a health care provider treating a minor who claims to be emancipated by court order, obtain and maintain a copy of the court order in the minor’s medical record and attempt to confirm the identity of the minor.
- An unwed pregnant minor may consent to the performance of medical or surgical care or services related to her pregnancy (F.S. 743.065). (Note: this does not cover pregnancy terminations. See NOTE at the end of this article.) As with other exceptions, this exception has been in existence for decades. The health care provider caring for an unwed pregnant minor should focus on documenting the extent of the minor’s awareness of health care advice and informed consent with respect to any procedures undertaken.
- An unwed minor mother may consent to the performance of medical or surgical care or services for her child (F.S. 743.065). In the case of treatment for the child of an unwed minor mother, the health care provider should carefully document the identity of the child as well as the maternity of the unwed minor mother. Once satisfied that the unwed minor is the mother of the child, the health care provider should focus on the informed consent process directed at the unwed minor mother the same as if she were an adult.
- A minor 17 years of age or older may donate blood without parental consent (F.S. 743.06). Any health care provider receiving a blood donation from a minor should obtain proof of age and carefully document the Informed consent as to the blood donation process.
- A parent’s informed consent is not required for medical emergencies, if the emergency care is provided in a hospital, college health service or pre-hospital setting by paramedics, EMTs, and other emergency medical services personnel (F.S. 743.064). However, this exception only applies when parental consent cannot be immediately obtained due to a minor’s inability to identify him/herself or his/her parents or if the parents cannot be located following reasonable attempts. Where parents cannot be located, the statute provides a list of others, in order of priority, from whom consent for the emergency treatment can be obtained. Notification of the emergency treatment is required as soon thereafter as possible. The medical records must document the attempts to contact the parents, the reason parental consent was not obtained and the determination that emergency care was required. This exception also provides immunity to the health care providers. Like the others, this exception has not changed and is not affected by the new law.
- A minor can consent to examination or treatment for sexually transmitted diseases (F.S. 483.30). Again, this exception has not changed. Careful documentation of the informed consent process with the minor is critical.
- A minor can consent to maternal health and contraceptive information and services of a nonsurgical nature if a minor is married, is a parent, is pregnant, or may (in the opinion of the physician) suffer probable health hazards if such services are not provided (F.S. 381.0051). This is more of an expansion of several of the emancipated minor provisions above. It does not eliminate the general requirement to obtain informed consent from a parent unless the minor is married, is a parent him/herself, is pregnant or at risk for serious health harm.
- Clinical lab services are exempted from this law, unless the services occurred through a direct encounter with the minor (F.S. 1014.06(4)). If a minor presents to a clinical laboratory to receive clinical lab services, the lab should obtain the consent of a parent.
- Certain mental health services may be provided without parental consent (F.S. 394.4784). Strict adherence to the statute is essential to mitigate risk of exceeding the exception.
- Certain substance abuse treatment may be provided without parental consent (F.S. 397.501(6)). Again, strict adherence to the statute is essential to mitigate risk of exceeding the exception.
Interestingly, Florida’s Good Samaritan Act (F.S. §768.13) is not an exception to the Parents’ Bill of Rights as it does not address care rendered to a minor in an emergency. Therefore, the legal limitations of immunity provided under the emergency treatment provisions of F.S. §743.064 do not expand to cover care rendered by a Good Samaritan health care provider to a minor in emergencies outside the defined settings. Moreover, the Parents’ Bill of Rights creates the possibility of criminal prosecution and civil liability for rendering care in an emergency situation without parental consent. Arguably, the threat of criminal action is not protected by the Legislature’s stated intent. However, the Good Samaritan Act has some redeeming language concerning the Legislature’s intent when passing the Act: “to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation.” This intent coupled with the compelling state interest in protecting the lives of all individuals particularly in emergency situations may indicate that the risk of prosecution would be low, at least from a criminal standpoint. Additionally, the Act provides that “any person whose acts or omissions are not otherwise covered by this section and who participates in emergency response activities under the direction of or in connection with a community emergency response team, local emergency management agencies… is not liable for any civil damages as a result of care, treatment, or services provided gratuitously in such capacity…” And although parents could bring a civil legal action for rendering emergency treatment that saves the life of their minor child without their consent, it is difficult to conceive of a scenario where the health care provider rendering the emergency medical care would be held liable in a civil setting.
So, has anything really changed? Informed consent of a parent for treatment of a minor has always been required. And if a health care provider failed to obtain informed consent in a situation where an exception was not available, that health care provider was always subject to disciplinary action for that lack of informed consent. As described above, the exceptions have not changed. The only change seems to be the potential for a criminal penalty to acting without informed consent. That threat of a misdemeanor charge may cause health care providers to pause before rendering emergency care or acting as a Good Samaritan. However, as indicated above, it would be a very extreme scenario where a health care provider rendering life-saving care to a minor was held liable.
Regardless, the informed consent process continues to be foundational to the delivery of quality health care services. Informed consent must be emphasized in all health care operations and settings. Procedures should be in place to immediately respond to emergencies involving minor children. And, all health care providers should periodically reassess their operations against current laws, modifying as appropriate for compliance.
NOTE: Termination of Minor’s Pregnancy. Although not an exception to the Parents’ Bill of Rights, it is important to recognize that termination of a minor’s pregnancy is not governed by the Parents’ Bill of Rights, but rather by the “Parental Notice of and Consent for Abortion Act”, F.S. §390.01114. Under this Act, a physician may not terminate the pregnancy of a minor unless the physician has complied with the notification and consent requirements of the Act. Either the physician terminating the pregnancy, or a referring physician must give actual notice, unless actual notice is not possible after reasonable effort has been made. Actual notice may be given by telephone if the physician speaks directly with a parent and then confirms that notice in writing mailed to the parent’s last known address. If actual notice is not possible, constructive notice must be given and may be done by letter or other form of communication. Notice of intended pregnancy termination is not required if the physician determines a medical emergency exists and there is insufficient time to comply with the notification requirements. If the physician proceeds without giving notice, the physician must document the medical necessity for proceeding without notification. Following notice, the physician must obtain written consent, subject to a few exceptions, including medical emergency. These protections were already in place well before the Parents’ Bill of Rights was passed. And, as with the other laws and exceptions, these protections have not changed.